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Global Calcium Private Ltd. Versus Commissioner of Customs

2016 (12) TMI 199 - CESTAT CHENNAI

Conversion of shipping bills - 189 free shipping bills to drawback shipping bills - Rule 12 (1) (a) of Drawback Rules - deliberate error made by appellant - request of conversion was made more than one year after the issue of Let Export Order - learned advocate relied in the decision of the case of CC Tuticorin Vs Thiru Arooran Sugars Ltd. [2014 (12) TMI 691 - MADRAS HIGH COURT] - Held that: - In the first place, it is noticed that the decisions of Hon'ble High Court and Tribunal decisions cited .....

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on of shipping bill from schemes involving from rigorous examination to schemes involving less rigorous examination (for example, free advance authorization, DFIA reward schemes to drawback/DEPB scheme or schemes involving same level of examination). However, it has been clearly laid down in the circular that since free shipping bills are subjected to NIL examination norms, conversion of free shipping bill into export promotion scheme shipping bill should not be allowed. At the same time, it has .....

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nder free shipping bills without such conversion has not been considered by the lower authority. In the event, the matter is once again remanded to adjudicating authority to re-examine the matter - It is clarified that time bar provision will not apply in this matter - appeal allowed by way of remand. - Appeal No. C/41611/2016 - Final Order No. 42370/2016 - Dated:- 29-11-2016 - Shri Madhu Mohan Damodhar, Member (Technical) Shri G. Derrick Sam, Advocate For the Appellant Shri A. Cletus, ADC (AR) .....

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r provision in law, it is open to the authorities to examine the merit of the case since there is no material on record to suggest that the issue is not considerable. On these findings, the matter had been remanded for de novo consideration. In de novo proceedings, the Commissioner of Customs vide the impugned order has rejected the request for conversion of the free shipping bills for the reasons recorded in paras-7 to 9 of his order. In particular, lower authority has found that no declaration .....

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and it was not a matter of any inadvertent error and due to any reason beyond their control of the appellant. Lower authority has also noted the fact that request of conversion was made more than one year after the issue of Let Export Order. Hence this appeal. 2. Today, Ld. Advocate Shri G. Derrick Sam appearing for appellant, placed reliance on the decision of Hon ble High Court of Madras in CC Tuticorin Vs Thiru Arooran Sugars Ltd. 2014 (307) ELT 248 (Mad.) and inter alia the decision of CEST .....

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ersion have to be made. He submitted that all the consignments covered by the said free shipping bills had been examined and sealed by the jurisdictional Central Excise officers. 3. On the other hand, Ld.A.R, Shri A. Cletus, ADC on behalf of Revenue, contends that norms for examination of free shipping bills are much less rigorous than that of goods exported under export promotion schemes. He also argues that once the goods are exported under free shipping bills, their conversion cannot be allow .....

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cited by learned advocate (except for Gennex Laboratories Ltd. case) relate to the Board s circular No.4/2004-Cus. dt. 16.1.2004. As such, I hold that they cannot be made applicable to the facts of the present case since thereafter Board vide Circular No.36/2010-Cus. dt. 23.9.2010, has taken note of series of judgements and accordingly guidelines had been issued for evaluating and decided upon the request for such conversion. For easy reference, the said circular is reproduced below :- Shipping .....

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directed to invite attention to the Board s circular No. 4/2004-Cus., dated 16-1-2004 which debars conversion of free shipping bills to Advance License/DFRC/DEPB shipping bills and allows conversion of shipping bills from one export promotion scheme to another only where the benefit of an export promotion scheme claimed by the exporter has been denied by the DGFT/MoC&I or Customs due to any dispute. 2. It has been represented to the Board that the norms for allowing conversion of shipping bi .....

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the said proviso are satisfied, conversion of shipping bill should be allowed. The conversion of the shipping bill from one scheme to another cannot be linked with denial of benefit of one scheme by DGFT/MoC&I or Customs due to some dispute as no such condition for amendment of shipping bill has been provided in section 149 of Customs Act, 1962. 3. The issue has been re-examined in light of the above. It is clarified that Commissioner of Customs may allow conversion of shipping bills from s .....

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he provisions of section 149 of the Customs Act, 1962 on a case to case basis on merits provided the Commissioner of Customs is satisfied, on the basis of documentary evidence which was in existence at the time the goods were exported, that the goods were eligible for the export promotion scheme to which conversion has been requested. Conversion of shipping bills shall also be subject to conditions as may be specified by the DGFT/MOC. The conversion may be allowed subject to the following furthe .....

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. (d) On the basis of S/Bill/export documents, the exporter has fulfilled all conditions of the export promotion scheme to which he is seeking conversion. (e) The exporter has not availed benefit of the export promotion scheme under which the good s were exported and no fraud/ misdeclaration/manipulation has been noticed or investigation initiated against him in respect of such exports. 4. Free shipping bills (shipping bills not filed under any export promotion scheme) are subject to nil examina .....

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g conversion to ensure that the exporter does not take benefit of both the schemes i.e. the scheme to which conversion is sought and the scheme from which conversion is sought. Whenever conversion of a shipping bill is allowed, the same should be informed to DGFT so that they may also ensure that the exporter does not take benefit of both the schemes. 6. This circular supersedes the Board circular No. 4/2004-Cus., dated 16-1-2004 and the earlier circulars issued in the past on this issue. This c .....

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ircular. 5. Section 149 of the Customs Act provides for amendment of inter alia shipping bills after export of the goods only on the basis of documentary evidence which was in existence at the time when the goods were exported. The proper officer for the purposes of Section 149 is the Commissioner of Customs. Section 149 also mandates that such amendment may be done by such proper officer in his discretion. Such discretion has to be an objective discretion and not subjective. Only towards this e .....

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